Self-Regulatory Organizations; NYSE Arca, Inc.; Order Granting Approval of Proposed Rule Change Relating to Listing and Trading of AdvisorShares Global Echo ETF Under NYSE Arca Equities Rule 8.600, 30345-30349 [2012-12355]

Download as PDF Federal Register / Vol. 77, No. 99 / Tuesday, May 22, 2012 / Notices srobinson on DSK4SPTVN1PROD with NOTICES Commission notes that the Reporting Authority that provides the Disclosed Portfolio must implement and maintain, or be subject to, procedures designed to prevent the use and dissemination of material non-public information regarding the actual components of the portfolio.27 The Exchange states that it has a general policy prohibiting the distribution of material, non-public information by its employees. The Exchange also states that the Adviser and Sub-Adviser are each affiliated with a broker-dealer, and the Adviser and Sub-Adviser have each implemented a fire wall with respect to its brokerdealer affiliate regarding access to information concerning the composition and/or changes to the portfolio.28 The Exchange represents that the Shares are deemed to be equity securities, thus rendering trading in the Shares subject to the Exchange’s existing rules governing the trading of equity securities. In support of this proposal, the Exchange has made representations, including: (1) The Shares will conform to the initial and continued listing criteria under NYSE Arca Equities Rule 8.600. (2) The Exchange has appropriate rules to facilitate transactions in the Shares during all trading sessions. (3) The Exchange’s surveillance procedures applicable to derivative products, which include Managed Fund halt or suspend trading in the Shares of the Fund. Trading in Shares of the Fund will be halted if the circuit breaker parameters in NYSE Arca Equities Rule 7.12 have been reached. Trading also may be halted because of market conditions or for reasons that, in the view of the Exchange, make trading in the Shares inadvisable. 27 See NYSE Arca Equities Rule 8.600(d)(2)(B)(ii). 28 See supra note 6. The Commission notes that an investment adviser to an open-end fund is required to be registered under the Investment Advisers Act of 1940 (‘‘Advisers Act’’). As a result, the Adviser and Sub-Adviser and their related personnel are subject to the provisions of Rule 204A–1 under the Advisers Act relating to codes of ethics. This Rule requires investment advisers to adopt a code of ethics that reflects the fiduciary nature of the relationship to clients as well as compliance with other applicable securities laws. Accordingly, procedures designed to prevent the communication and misuse of non-public information by an investment adviser must be consistent with Rule 204A–1 under the Advisers Act. In addition, Rule 206(4)–7 under the Advisers Act makes it unlawful for an investment adviser to provide investment advice to clients unless such investment adviser has (i) adopted and implemented written policies and procedures reasonably designed to prevent violation, by the investment adviser and its supervised persons, of the Advisers Act and the Commission rules adopted thereunder; (ii) implemented, at a minimum, an annual review regarding the adequacy of the policies and procedures established pursuant to subparagraph (i) above and the effectiveness of their implementation; and (iii) designated an individual (who is a supervised person) responsible for administering the policies and procedures adopted under subparagraph (i) above. VerDate Mar<15>2010 17:20 May 21, 2012 Jkt 226001 Shares, are adequate to properly monitor Exchange trading of the Shares in all trading sessions and to deter and detect violations of Exchange rules and applicable federal securities laws. (4) Prior to the commencement of trading, the Exchange will inform its Equity Trading Permit Holders (‘‘ETP Holders’’) in an Information Bulletin of the special characteristics and risks associated with trading the Shares. Specifically, the Information Bulletin will discuss the following: (a) The procedures for purchases and redemptions of Shares in Creation Unit aggregations (and that Shares are not individually redeemable); (b) NYSE Arca Equities Rule 9.2(a), which imposes a duty of due diligence on its ETP Holders to learn the essential facts relating to every customer prior to trading the Shares; (c) the risks involved in trading the Shares during the Opening and Late Trading Sessions when an updated Portfolio Indicative Value will not be calculated or publicly disseminated; (d) how information regarding the Portfolio Indicative Value is disseminated; (e) the requirement that ETP Holders deliver a prospectus to investors purchasing newly issued Shares prior to or concurrently with the confirmation of a transaction; and (f) trading information. (5) For initial and/or continued listing, the Fund will be in compliance with Rule 10A–3 under the Exchange Act,29 as provided by NYSE Arca Equities Rule 5.3. (6) The foreign equity securities in which the Fund may invest, including any Depositary Receipts, New York Shares, and Global shares, will be limited to securities that trade in markets that are members of the Intermarket Surveillance Group, which includes all U.S. national securities exchanges and certain foreign exchanges, or are parties to a comprehensive surveillance sharing agreement with the Exchange. (7) While the Fund may invest in securities of other investment companies that are leveraged, such investments will not be used to enhance leverage and will be consistent with the Fund’s investment objective. (8) The Fund may invest up to 35% of its net assets in Futures Contracts, interest rate swaps, total return swaps, non-U.S. currency swaps, credit default swaps, options, and other derivative instruments to seek to enhance return, to hedge some of the risks of their investments in securities, as a substitute for a position in the underlying asset, to reduce transaction costs, to maintain full market exposure, to manage cash flows, to limit exposure to losses due to changes to non-U.S. currency exchange rates, or to preserve capital. The Fund, under normal market conditions, will not invest more than 20% of its net assets in such instruments. (9) The Fund will not hold illiquid securities, which include restricted securities, Rule 144A securities, and repurchase agreements with maturities in excess of seven days, if, as a result, such securities would comprise more than 15% of the value of the Fund’s net assets. (10) A minimum of 100,000 Shares of the Fund will be outstanding at the commencement of trading on the Exchange. This approval order is based on all of the Exchange’s representations. For the foregoing reasons, the Commission finds that the proposed rule change, as modified by Amendment No. 1 thereto, is consistent with Section 6(b)(5) of the Act 30 and the rules and regulations thereunder applicable to a national securities exchange. IV. Conclusion It is therefore ordered, pursuant to Section 19(b)(2) of the Act,31 that the proposed rule change (SR–NYSEArca– 2012–21), as modified by Amendment No. 1 thereto, be, and it hereby is, approved. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.32 Kevin M. O’Neill, Deputy Secretary. [FR Doc. 2012–12306 Filed 5–21–12; 8:45 am] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–67003; File No. SR– NYSEArca–2012–24] Self-Regulatory Organizations; NYSE Arca, Inc.; Order Granting Approval of Proposed Rule Change Relating to Listing and Trading of AdvisorShares Global Echo ETF Under NYSE Arca Equities Rule 8.600 May 16, 2012. I. Introduction On March 16, 2012, NYSE Arca, Inc. (‘‘Exchange’’ or ‘‘NYSE Arca’’) filed with the Securities and Exchange Commission (‘‘Commission’’), pursuant to Section 19(b)(1) of the Securities 30 15 U.S.C. 78f(b)(5). U.S.C. 78s(b)(2). 32 17 CFR 200.30–3(a)(12). 31 15 29 17 PO 00000 CFR 240.10A–3. Frm 00086 Fmt 4703 Sfmt 4703 30345 E:\FR\FM\22MYN1.SGM 22MYN1 30346 Federal Register / Vol. 77, No. 99 / Tuesday, May 22, 2012 / Notices Exchange Act of 1934 (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 a proposed rule change to list and trade shares (‘‘Shares’’) of the AdvisorShares Global Echo ETF (‘‘Fund’’) under NYSE Arca Equities Rule 8.600. The proposed rule change was published for comment in the Federal Register on April 5, 2012.3 The Commission received no comments on the proposal. This order grants approval of the proposed rule change. II. Description of the Proposed Rule Change The Exchange proposes to list and trade the Shares of the Fund pursuant to NYSE Arca Equities Rule 8.600, which governs the listing and trading of Managed Fund Shares on the Exchange. The Shares will be offered by AdvisorShares Trust (‘‘Trust’’), a statutory trust organized under the laws of the State of Delaware and registered with the Commission as an open-end management investment company.4 The investment adviser to the Fund is AdvisorShares Investments, LLC (‘‘Adviser’’). The Fund’s sub-advisers (‘‘Sub-Advisers’’ and each a ‘‘SubAdviser’’), which provide day-to-day portfolio management of the Fund, are First Affirmative Financial Network LLC; Reynders, McVeigh Capital Management, LLC; Baldwin Brothers Inc.; and Community Capital Management Inc. Foreside Fund Services, LLC is the principal underwriter and distributor of the Fund’s Shares. The Bank of New York Mellon Corporation serves as the administrator (‘‘Administrator’’), custodian, transfer agent, and fund accounting agent for the Fund. The Exchange represents that neither the Adviser nor the Sub-Advisers are affiliated with a broker-dealer.5 1 15 U.S.C. 78s(b)(1). CFR 240.19b–4. 3 See Securities Exchange Act Release No. 66696 (March 30, 2012), 77 FR 20660 (‘‘Notice’’). 4 The Trust is registered under the Investment Company Act of 1940 (‘‘1940 Act’’). On July 15, 2011, the Trust filed with the Commission PostEffective Amendment No. 32 to Form N–1A under the Securities Act of 1933 and under the 1940 Act relating to the Fund (File Nos. 333–157876 and 811–22110) (‘‘Registration Statement’’). In addition, the Commission has issued an order granting certain exemptive relief to the Trust under the 1940 Act. See Investment Company Act Release No. 29291 (May 28, 2010) (File No. 812–13677) (‘‘Exemptive Order’’). 5 See Commentary .06 to NYSE Arca Equities Rule 8.600. The Exchange represents that, in the event (a) the Adviser or the Sub-Advisers become newly affiliated with a broker-dealer, or (b) any new adviser or sub-adviser becomes affiliated with a broker-dealer, it will implement a fire wall with respect to such broker-dealer regarding access to information concerning the composition and/or changes to the portfolio, and will be subject to procedures designed to prevent the use and srobinson on DSK4SPTVN1PROD with NOTICES 2 17 VerDate Mar<15>2010 17:20 May 21, 2012 Jkt 226001 Description of the Fund The Fund will seek to achieve longterm capital appreciation with an emphasis on absolute (positive) returns and low sensitivity to traditional financial market indices, such as the S&P 500 Index, over a full market cycle. The Fund will seek to achieve its investment objective by investing under normal market circumstances 6 at least 80% of its total assets in the following securities: U.S. exchange-listed equity securities; 7 American Depository Receipts (‘‘ADRs’’); 8 fixed income securities (including municipal bonds); and exchange-traded products (‘‘Underlying ETPs’’) 9 that provide diversified exposure to various asset classes and market segments. The Fund will be a multi-manager, multi-strategy, broadly diversified, actively managed exchange-traded fund with a focus on ‘‘Sustainable Investing.’’ Sustainable Investing generally refers to an investment methodology that takes into consideration economic, environmental, technology, and a dissemination of material non-public information regarding such portfolio. 6 The term ‘‘under normal market circumstances’’ includes, but is not limited to, the absence of extreme volatility or trading halts in the equities or fixed income markets or the financial markets generally; operational issues causing dissemination of inaccurate market information; or force majeure type events such as systems failure, natural or manmade disaster, act of God, armed conflict, act of terrorism, riot or labor disruption or any similar intervening circumstance. 7 The Fund may invest in equity securities of domestic and foreign companies, including common stocks, preferred stocks, warrants to acquire common stock, securities convertible into common stock, and investments in master limited partnerships. 8 The Fund generally will invest in sponsored ADRs, but it may invest up to 10% of total assets in unsponsored ADRs. 9 Underlying ETPs include Investment Company Units (as described in NYSE Arca Equities Rule 5.2(j)(3)); Index-Linked Securities (as described in NYSE Arca Equities Rule 5.2(j)(6)); Portfolio Depositary Receipts (as described in NYSE Arca Equities Rule 8.100); Trust Issued Receipts (as described in NYSE Arca Equities Rule 8.200); Commodity-Based Trust Shares (as described in NYSE Arca Equities Rule 8.201); Currency Trust Shares (as described in NYSE Arca Equities Rule 8.202); Commodity Index Trust Shares (as described in NYSE Arca Equities Rule 8.203); Trust Units (as described in NYSE Arca Equities Rule 8.500); Managed Fund Shares (as described in NYSE Arca Equities Rule 8.600); and closed-end funds. The Underlying ETPs all will be listed and traded in the U.S. on registered exchanges. The Fund may invest in the securities of Underlying ETPs registered under the 1940 Act consistent with the requirements of Section 12(d)(1) of the 1940 Act, or any rule, regulation, or order of the Commission or interpretation thereof. The Fund will only make such investments in conformity with the requirements of Section 817 of the Internal Revenue Code of 1986. The Underlying ETPs in which the Fund may invest will primarily be index-based exchange-traded funds that hold substantially all of their assets in securities representing a specific index. PO 00000 Frm 00087 Fmt 4703 Sfmt 4703 variety of social factors when making investment decisions. Accordingly, the Fund is designed as a core allocation that proactively seeks Sustainable Investment-themed investment opportunities that may socially and environmentally benefit the earth, with a focus on water, clean energy, community development, innovation, and other sustainable themes across asset classes. Sustainable Investment themes that the Fund may pursue include, but are not limited to, the following: economic themes (corporate governance, risk and crisis management, community investment, energy efficiency, food, green building); environmental themes (air, water, earth); technology themes (mobility, renewable energy, technology, and access); and social themes (human health, such as occupational health and safety). The Fund will seek to achieve its investment objective by allocating a portion of the Fund’s assets to each of the Fund’s Sub-Advisers who will employ their respective investment strategies to generate absolute returns over a full market cycle. Generally, a full market cycle consists of a bull market followed by a bear market and a return to a bull market, or vice versa. Initially, an equal proportion of the Fund’s assets will be allocated to each Sub-Adviser to obtain the desired exposure to the strategies described below. The allocation among SubAdvisers will vary over time in response to a variety of factors including prevailing market conditions. The Adviser has designated First Affirmative Financial Network, LLC to allocate and monitor the allocation of the Fund’s assets to each Sub-Adviser to ensure that the Fund’s portfolio maintains the proper investment exposure to seek to achieve its investment objective. Each Sub-Adviser will seek to identify and invest either directly or indirectly through other Underlying ETPs in securities of companies that are making a positive impact in the world and reflect Sustainable Investment themes, including corporate sustainability. The Fund’s investments in companies that practice corporate sustainability will provide an additional layer of diversification because such investments are designed to increase long-term shareholder value. Companies focused on corporate sustainability also can provide more attractive risk return profiles for investors, and can leverage various other Sustainable Investment themes. The Fund may take both long and short positions in any of these investments. The Fund may invest up to E:\FR\FM\22MYN1.SGM 22MYN1 Federal Register / Vol. 77, No. 99 / Tuesday, May 22, 2012 / Notices srobinson on DSK4SPTVN1PROD with NOTICES 65% (and intends to always invest at least 15%) of its net assets in domestic and foreign fixed income securities. The Fund may invest in securities of any capitalization range and may employ one or more investment styles (from growth to value) at any time as necessary to seek to achieve the Fund’s investment objective. Each Sub-Adviser will determine whether to buy or sell an investment for the Fund’s portfolio by applying one or more of the following strategies: Core Strategies Fixed Income Strategies. Fixed income strategies consist of investment strategies that invest primarily in debt securities of domestic and foreign governments, agencies, instrumentalities, municipalities and companies of all maturities and qualities (including ‘‘junk bonds’’ and up to 15% of total assets in defaulted debt securities), TIPS (Treasury Inflation Protected Securities), and Underlying ETPs that provide exposure to fixed income securities or strategies. 85% or more of the Fund’s investments in fixed income strategies will be in investment grade debt securities. Debt securities of foreign governments are sometimes referred to as sovereign debt obligations and may be issued or guaranteed by foreign governments or their agencies. The Fund may invest up to 10% of total assets in mortgage-backed securities or other asset-backed securities.10 Fixed income strategies also may involve hedging through the use of investments in other Underlying ETPs to enhance risk-adjusted return. Equity Strategies. Equity strategies will consist of both domestic and international/emerging markets strategies. The domestic equity strategies will seek to invest in securities of companies that the SubAdvisers believe will outperform other equity securities over the long term. The international/emerging markets equity strategies will seek to invest in securities of undervalued international companies through ADRs that provide the Fund with exposure to businesses outside of the U.S. and that are attractively priced relative to their economic fundamentals. Both U.S. and international investments will be selected using fundamental analysis of factors such as earnings, cash flows, and 10 This limitation does not apply to securities issued or guaranteed by federal agencies and/or U.S. government sponsored instrumentalities, such as the Government National Mortgage Administration (‘‘GNMA’’), the Federal Housing Administration (‘‘FHA’’), the Federal National Mortgage Association (‘‘FNMA’’), and the Federal Home Loan Mortgage Corporation (‘‘FHLMC’’). VerDate Mar<15>2010 17:20 May 21, 2012 Jkt 226001 valuations based upon them, and will be diversified among the economic and industry sectors in the S&P 500® Index, the Morgan Stanley Capital International (‘‘MSCI’’) All Country World Index, MSCI Europe, Australasia and Far East Index, and MSCI Emerging Markets Index. Alternative Strategies Long/Short and Hedging Strategies. Alternative strategies will consist of strategies that combine short sales of equities (including shares of Underlying ETPs) or purchase of shares of inverse Underlying ETPs. As such, long/short strategies may utilize securities that seek to track indexes on markets, sectors, strategies, and/or industries to hedge against potential adverse movements in security prices. The Fund may implement multiple variations of long/short and hedging strategies. The basic long/short equity strategies generally will seek to increase net long exposure in a bull market and decrease net long exposure, by holding high concentrations in cash or investing 100% short in a bear market. Other Investments The Fund may enter into repurchase agreements with financial institutions, which may be deemed to be loans. The Fund will follow certain procedures designed to minimize the risks inherent in such agreements. These procedures will include effecting repurchase transactions only with large, wellcapitalized, and well-established financial institutions whose condition will be continually monitored by the Sub-Advisers. In addition, the value of the collateral underlying the repurchase agreement will always be at least equal to the repurchase price, including any accrued interest earned on the repurchase agreement. The Fund may enter into reverse repurchase agreements without limit as part of the Fund’s investment strategy. Reverse repurchase agreements involve sales by the Fund of portfolio assets concurrently with an agreement by the Fund to repurchase the same assets at a later date at a fixed price. The Fund, or Underlying ETPs in which it invests, may invest in U.S. government securities and U.S. Treasury zero-coupon bonds. The Fund, or Underlying ETPs in which it invests, may invest in shares of real estate investment trusts (‘‘REITs’’). Diversification. The Fund may not (i) with respect to 75% of its total assets, purchase securities of any issuer (except securities issued or guaranteed by the U.S. Government, its agencies or instrumentalities or shares of PO 00000 Frm 00088 Fmt 4703 Sfmt 4703 30347 investment companies) if, as a result, more than 5% of its total assets would be invested in the securities of such issuer; or (ii) acquire more than 10% of the outstanding voting securities of any one issuer. Concentration. The Fund may not invest 25% or more of its total assets in the securities of one or more issuers conducting their principal business activities in the same industry or group of industries. This limitation does not apply to investments in securities issued or guaranteed by the U.S. Government, its agencies or instrumentalities, or shares of investment companies. The Fund will not invest 25% or more of its total assets in any investment company that so concentrates. The Fund’s investments will be consistent with the Fund’s investment objective and will not be used to enhance leverage. The Fund will not purchase illiquid securities, and except for Underlying ETPs that may hold nonU.S. issues, the Fund will not otherwise invest in non-U.S. issues. Further, in accordance with the Exemptive Order, the Fund will not invest in options, futures, or swaps. To respond to adverse market, economic, political, or other conditions, the Fund may invest 100% of its total assets, without limitation, in highquality debt securities and money market instruments either directly or through Underlying ETPs. The Fund may be invested in these instruments for extended periods, depending on the Sub-Advisers’ assessment of market conditions. These debt securities and money market instruments include shares of other mutual funds, commercial paper, certificates of deposit, bankers’ acceptances, U.S. Government securities, repurchase agreements, and bonds that are BBB or higher. While the Fund is in a defensive position, the opportunity to achieve its investment objective will be limited. Additional information regarding the Trust, Fund, and the Shares, including but not limited to investment strategies, risks, creation and redemption procedures, fees, portfolio holdings disclosure policies, distributions, taxes, Net Asset Value (‘‘NAV’’), and availability of information can be found in the Registration Statement and Notice, as applicable.11 III. Discussion and Commission’s Findings The Commission has carefully reviewed the proposed rule change and finds that it is consistent with the 11 See E:\FR\FM\22MYN1.SGM supra notes 4 and 3, respectively. 22MYN1 30348 Federal Register / Vol. 77, No. 99 / Tuesday, May 22, 2012 / Notices requirements of Section 6 of the Act 12 and the rules and regulations thereunder applicable to a national securities exchange.13 In particular, the Commission finds that the proposal is consistent with Section 6(b)(5) of the Act,14 which requires, among other things, that the Exchange’s rules be designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in facilitating transactions in securities, to remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, to protect investors and the public interest. The Commission notes that the Fund and the Shares must comply with the requirements of NYSE Arca Equities Rule 8.600 to be listed and traded on the Exchange. The Commission finds that the proposal to list and trade the Shares on the Exchange is consistent with Section 11A(a)(1)(C)(iii) of the Act,15 which sets forth Congress’ finding that it is in the public interest and appropriate for the protection of investors and the maintenance of fair and orderly markets to assure the availability to brokers, dealers, and investors of information with respect to quotations for, and transactions in, securities. Quotation and last-sale information for the Shares will be available via the Consolidated Tape Association (‘‘CTA’’) high-speed line. In addition, the Portfolio Indicative Value (‘‘PIV’’), as defined in NYSE Arca Equities Rule 8.600(c)(3), will be widely disseminated by one or more major market data vendors at least every 15 seconds during the Exchange’s Core Trading Session.16 On each business day, before commencement of trading in Shares in the Core Trading Session on the Exchange, the Fund will disclose on its Web site the Disclosed Portfolio, as defined in NYSE Arca Equities Rule 8.600(c)(2), that will form the basis for the Fund’s calculation of the NAV at the end of the business day.17 The NAV per 12 15 U.S.C. 78f. approving this proposed rule change, the Commission has considered the proposed rule’s impact on efficiency, competition, and capital formation. See 15 U.S.C. 78c(f). 14 15 U.S.C. 78f(b)(5). 15 15 U.S.C. 78k–1(a)(1)(C)(iii). 16 According to the Exchange, several major market data vendors display and/or make widely available PIVs published on the CTA or other data feeds. 17 On a daily basis, the Adviser will disclose for each portfolio security or other financial instrument of the Fund the following information: ticker symbol (if applicable), name of security or financial instrument, number of shares or dollar value of financial instruments held in the portfolio, and srobinson on DSK4SPTVN1PROD with NOTICES 13 In VerDate Mar<15>2010 17:20 May 21, 2012 Jkt 226001 Share for the Fund will be calculated by the Administrator and determined as of the close of the regular trading session on the New York Stock Exchange (‘‘NYSE’’) (ordinarily 4:00 p.m., E.T.) on each day that the NYSE is open. In addition, information regarding market price and trading volume of the Shares will be continually available on a realtime basis throughout the day on brokers’ computer screens and other electronic services, and the previous day’s closing price and trading volume information for the Shares will be published daily in the financial section of newspapers. The Web site for the Fund will include a form of the prospectus for the Fund that may be downloaded, additional data relating to NAV, and other applicable quantitative information, updated on a daily basis. Moreover, a basket composition file, which includes the security names and share quantities required to be delivered in exchange for the Shares, together with estimates and actual cash components, will be publicly disseminated daily prior to the opening of the NYSE via the National Securities Clearing Corporation. Price information for the ADRs, debt and equity securities held by the Fund, including foreign equity securities, and Underlying ETPs will be available through major market data vendors or securities exchanges listing and trading such securities. The Commission further believes that the proposal to list and trade the Shares is reasonably designed to promote fair disclosure of information that may be necessary to price the Shares appropriately and to prevent trading when a reasonable degree of transparency cannot be assured. The Commission notes that the Exchange will obtain a representation from the issuer of the Shares that the NAV per Share will be calculated daily and that the NAV and the Disclosed Portfolio will be made available to all market participants at the same time.18 In addition, the Exchange will halt trading in the Shares under the specific circumstances set forth in NYSE Arca Equities Rule 8.600(d)(2)(D), and may halt trading in the Shares if trading is not occurring in the securities and/or the financial instruments comprising the Disclosed Portfolio of the Fund, or if other unusual conditions or circumstances detrimental to the maintenance of a fair and orderly percentage weighting of the security or financial instrument in the portfolio. The Web site information will be publicly available at no charge. 18 See NYSE Arca Equities Rule 8.600(d)(1)(B). PO 00000 Frm 00089 Fmt 4703 Sfmt 4703 market are present.19 The Exchange will consider the suspension of trading in or removal from listing of the Shares if the PIV is no longer calculated or available or the Disclosed Portfolio is not made available to all market participants at the same time.20 Neither the Adviser nor the Sub-Advisers are affiliated with a broker-dealer.21 Further, the Commission notes that the Reporting Authority that provides the Disclosed Portfolio must implement and maintain, or be subject to, procedures designed to prevent the use and dissemination of material non-public information regarding the actual components of the portfolio.22 The Exchange states that it has a general policy prohibiting the distribution of material, non-public information by its employees. The Commission also notes that the Exchange may obtain information via the Intermarket Surveillance Group (‘‘ISG’’) from other exchanges that are members of ISG or with which the Exchange has in place a comprehensive surveillance sharing agreement. All of the equity securities, Underlying ETPs, and sponsored ADRs held by the Fund will be listed on securities exchanges, all of which are members of ISG. The Exchange further represents that the Shares are deemed to be equity securities, thus rendering trading in the 19 With respect to trading halts, the Exchange may consider all relevant factors in exercising its discretion to halt or suspend trading in the Shares of the Fund. Trading in Shares of the Fund will be halted if the circuit breaker parameters in NYSE Arca Equities Rule 7.12 have been reached. Trading also may be halted because of market conditions or for reasons that, in the view of the Exchange, make trading in the Shares inadvisable. 20 See NYSE Arca Equities Rule 8.600(d)(2)(C)(ii). 21 See supra note 5 and accompanying text. The Commission notes that an investment adviser to an open-end fund is required to be registered under the Investment Advisers Act of 1940 (‘‘Advisers Act’’). As a result, the Adviser and Sub-Advisers and their related personnel are subject to the provisions of Rule 204A–1 under the Advisers Act relating to codes of ethics. This Rule requires investment advisers to adopt a code of ethics that reflects the fiduciary nature of the relationship to clients as well as compliance with other applicable securities laws. Accordingly, procedures designed to prevent the communication and misuse of non-public information by an investment adviser must be consistent with Rule 204A–1 under the Advisers Act. In addition, Rule 206(4)-7 under the Advisers Act makes it unlawful for an investment adviser to provide investment advice to clients unless such investment adviser has (i) adopted and implemented written policies and procedures reasonably designed to prevent violation, by the investment adviser and its supervised persons, of the Advisers Act and the Commission rules adopted thereunder; (ii) implemented, at a minimum, an annual review regarding the adequacy of the policies and procedures established pursuant to subparagraph (i) above and the effectiveness of their implementation; and (iii) designated an individual (who is a supervised person) responsible for administering the policies and procedures adopted under subparagraph (i) above. 22 See NYSE Arca Equities Rule 8.600(d)(2)(B)(ii). E:\FR\FM\22MYN1.SGM 22MYN1 srobinson on DSK4SPTVN1PROD with NOTICES Federal Register / Vol. 77, No. 99 / Tuesday, May 22, 2012 / Notices Shares subject to the Exchange’s existing rules governing the trading of equity securities. In support of this proposal, the Exchange has made representations, including: (1) The Shares will conform to the initial and continued listing criteria under NYSE Arca Equities Rule 8.600. (2) The Exchange has appropriate rules to facilitate transactions in the Shares during all trading sessions. (3) The Exchange’s surveillance procedures applicable to derivative products, which include Managed Fund Shares, are adequate to properly monitor Exchange trading of the Shares in all trading sessions and to deter and detect violations of Exchange rules and applicable federal securities laws. (4) Prior to the commencement of trading, the Exchange will inform its Equity Trading Permit Holders in an Information Bulletin of the special characteristics and risks associated with trading the Shares. Specifically, the Information Bulletin will discuss the following: (a) The procedures for purchases and redemptions of Shares in Creation Unit aggregations (and that Shares are not individually redeemable); (b) NYSE Arca Equities Rule 9.2(a), which imposes a duty of due diligence on its Equity Trading Permit Holders to learn the essential facts relating to every customer prior to trading the Shares; (c) the risks involved in trading the Shares during the Opening and Late Trading Sessions when an updated PIV will not be calculated or publicly disseminated; (d) how information regarding the PIV is disseminated; (e) the requirement that Equity Trading Permit Holders deliver a prospectus to investors purchasing newly issued Shares prior to or concurrently with the confirmation of a transaction; and (f) trading information. (5) For initial and/or continued listing, the Fund will be in compliance with Rule 10A–3 under the Act,23 as provided by NYSE Arca Equities Rule 5.3. (6) The Fund will not: (a) Purchase illiquid securities; (b) in accordance with the Exemptive Order, invest in options, futures, or swaps; or (c) except for Underlying ETPs that may hold nonU.S. issues, otherwise invest in non-U.S. issues. (7) The Fund’s investments will be consistent with the Fund’s investment objective and will not be used to enhance leverage. (8) A minimum of 100,000 Shares of the Fund will be outstanding at the commencement of trading on the Exchange. This approval order is based on all of the Exchange’s representations. For the foregoing reasons, the Commission finds that the proposed rule change is consistent with Section 6(b)(5) of the Act 24 and the rules and regulations thereunder applicable to a national securities exchange. IV. Conclusion It is therefore ordered, pursuant to Section 19(b)(2) of the Act,25 that the proposed rule change (SR–NYSEArca– 2012–24) be, and it hereby is, approved. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.26 Kevin M. O’Neill, Deputy Secretary. [FR Doc. 2012–12355 Filed 5–21–12; 8:45 am] BILLING CODE 8011–01–P 17 CFR 240.10A–3. VerDate Mar<15>2010 17:20 May 21, 2012 Jkt 226001 Inc. because it has not filed any periodic reports since the period ended June 30, 2009. It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Convergence Ethanol, Inc. because it has not filed any periodic reports since the period ended June 30, 2007. The Commission is of the opinion that the public interest and the protection of investors require a suspension of trading in the securities of the above-listed companies. Therefore, it is ordered, pursuant to Section 12(k) of the Securities Exchange Act of 1934, that trading in the securities of the abovelisted companies is suspended for the period from 9:30 a.m. EDT on May 18, 2012, through 11:59 p.m. EDT on June 1, 2012. SECURITIES AND EXCHANGE COMMISSION By the Commission. Jill M. Peterson, Assistant Secretary. [File No. 500–1] [FR Doc. 2012–12482 Filed 5–18–12; 4:15 pm] Alderox, Inc., Applied Solar, Inc., Artes Medical, Inc., AskMeNow, Inc., Blink Logic Inc., and Convergence Ethanol, Inc.; Order of Suspension of Trading BILLING CODE 8011–01–P May 18, 2012. It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Alderox, Inc. because it has not filed any periodic reports since the period ended March 31, 2008. It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Applied Solar, Inc. because it has not filed any periodic reports since the period ended February 28, 2009. It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Artes Medical, Inc. because it has not filed any periodic reports since the period ended September 30, 2008. It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of AskMeNow, Inc. because it has not filed any periodic reports since the period ended March 31, 2008. It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Blink Logic 24 15 U.S.C. 78f(b)(5). U.S.C. 78s(b)(2). 26 17 CFR 200.30–3(a)(12). 25 15 23 See 30349 PO 00000 Frm 00090 Fmt 4703 Sfmt 4703 SMALL BUSINESS ADMINISTRATION [Disaster Declaration #13074 and #13075] Louisiana Disaster #LA–00044 U.S. Small Business Administration. ACTION: Notice. AGENCY: This is a notice of an Administrative declaration of a disaster for the State of Louisiana dated 05/15/ 2012. Incident: Severe Storms and Flooding. Incident Period: 03/11/2012 through 03/12/2012. Effective Date: 05/15/2012. Physical Loan Application Deadline Date: 07/16/2012. Economic Injury (EIDL) Loan Application Deadline Date: 02/15/2013. ADDRESSES: Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155. FOR FURTHER INFORMATION CONTACT: A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW., Suite 6050, Washington, DC 20416. SUPPLEMENTARY INFORMATION: Notice is hereby given that as a result of the Administrator’s disaster declaration, applications for disaster loans may be filed at the address listed above or other locally announced locations. SUMMARY: E:\FR\FM\22MYN1.SGM 22MYN1

Agencies

SECURITIES AND EXCHANGE COMMISSION

[Federal Register Volume 77, Number 99 (Tuesday, May 22, 2012)]
[Notices]
[Pages 30345-30349]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-12355]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-67003; File No. SR-NYSEArca-2012-24]


Self-Regulatory Organizations; NYSE Arca, Inc.; Order Granting 
Approval of Proposed Rule Change Relating to Listing and Trading of 
AdvisorShares Global Echo ETF Under NYSE Arca Equities Rule 8.600

May 16, 2012.

I. Introduction

    On March 16, 2012, NYSE Arca, Inc. (``Exchange'' or ``NYSE Arca'') 
filed with the Securities and Exchange Commission (``Commission''), 
pursuant to Section 19(b)(1) of the Securities

[[Page 30346]]

Exchange Act of 1934 (``Act'') \1\ and Rule 19b-4 thereunder,\2\ a 
proposed rule change to list and trade shares (``Shares'') of the 
AdvisorShares Global Echo ETF (``Fund'') under NYSE Arca Equities Rule 
8.600. The proposed rule change was published for comment in the 
Federal Register on April 5, 2012.\3\ The Commission received no 
comments on the proposal. This order grants approval of the proposed 
rule change.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 66696 (March 30, 
2012), 77 FR 20660 (``Notice'').
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II. Description of the Proposed Rule Change

    The Exchange proposes to list and trade the Shares of the Fund 
pursuant to NYSE Arca Equities Rule 8.600, which governs the listing 
and trading of Managed Fund Shares on the Exchange. The Shares will be 
offered by AdvisorShares Trust (``Trust''), a statutory trust organized 
under the laws of the State of Delaware and registered with the 
Commission as an open-end management investment company.\4\ The 
investment adviser to the Fund is AdvisorShares Investments, LLC 
(``Adviser''). The Fund's sub-advisers (``Sub-Advisers'' and each a 
``Sub-Adviser''), which provide day-to-day portfolio management of the 
Fund, are First Affirmative Financial Network LLC; Reynders, McVeigh 
Capital Management, LLC; Baldwin Brothers Inc.; and Community Capital 
Management Inc.
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    \4\ The Trust is registered under the Investment Company Act of 
1940 (``1940 Act''). On July 15, 2011, the Trust filed with the 
Commission Post-Effective Amendment No. 32 to Form N-1A under the 
Securities Act of 1933 and under the 1940 Act relating to the Fund 
(File Nos. 333-157876 and 811-22110) (``Registration Statement''). 
In addition, the Commission has issued an order granting certain 
exemptive relief to the Trust under the 1940 Act. See Investment 
Company Act Release No. 29291 (May 28, 2010) (File No. 812-13677) 
(``Exemptive Order'').
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    Foreside Fund Services, LLC is the principal underwriter and 
distributor of the Fund's Shares. The Bank of New York Mellon 
Corporation serves as the administrator (``Administrator''), custodian, 
transfer agent, and fund accounting agent for the Fund.
    The Exchange represents that neither the Adviser nor the Sub-
Advisers are affiliated with a broker-dealer.\5\
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    \5\ See Commentary .06 to NYSE Arca Equities Rule 8.600. The 
Exchange represents that, in the event (a) the Adviser or the Sub-
Advisers become newly affiliated with a broker-dealer, or (b) any 
new adviser or sub-adviser becomes affiliated with a broker-dealer, 
it will implement a fire wall with respect to such broker-dealer 
regarding access to information concerning the composition and/or 
changes to the portfolio, and will be subject to procedures designed 
to prevent the use and dissemination of material non-public 
information regarding such portfolio.
---------------------------------------------------------------------------

Description of the Fund

    The Fund will seek to achieve long-term capital appreciation with 
an emphasis on absolute (positive) returns and low sensitivity to 
traditional financial market indices, such as the S&P 500 Index, over a 
full market cycle. The Fund will seek to achieve its investment 
objective by investing under normal market circumstances \6\ at least 
80% of its total assets in the following securities: U.S. exchange-
listed equity securities; \7\ American Depository Receipts (``ADRs''); 
\8\ fixed income securities (including municipal bonds); and exchange-
traded products (``Underlying ETPs'') \9\ that provide diversified 
exposure to various asset classes and market segments.
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    \6\ The term ``under normal market circumstances'' includes, but 
is not limited to, the absence of extreme volatility or trading 
halts in the equities or fixed income markets or the financial 
markets generally; operational issues causing dissemination of 
inaccurate market information; or force majeure type events such as 
systems failure, natural or man-made disaster, act of God, armed 
conflict, act of terrorism, riot or labor disruption or any similar 
intervening circumstance.
    \7\ The Fund may invest in equity securities of domestic and 
foreign companies, including common stocks, preferred stocks, 
warrants to acquire common stock, securities convertible into common 
stock, and investments in master limited partnerships.
    \8\ The Fund generally will invest in sponsored ADRs, but it may 
invest up to 10% of total assets in unsponsored ADRs.
    \9\ Underlying ETPs include Investment Company Units (as 
described in NYSE Arca Equities Rule 5.2(j)(3)); Index-Linked 
Securities (as described in NYSE Arca Equities Rule 5.2(j)(6)); 
Portfolio Depositary Receipts (as described in NYSE Arca Equities 
Rule 8.100); Trust Issued Receipts (as described in NYSE Arca 
Equities Rule 8.200); Commodity-Based Trust Shares (as described in 
NYSE Arca Equities Rule 8.201); Currency Trust Shares (as described 
in NYSE Arca Equities Rule 8.202); Commodity Index Trust Shares (as 
described in NYSE Arca Equities Rule 8.203); Trust Units (as 
described in NYSE Arca Equities Rule 8.500); Managed Fund Shares (as 
described in NYSE Arca Equities Rule 8.600); and closed-end funds. 
The Underlying ETPs all will be listed and traded in the U.S. on 
registered exchanges. The Fund may invest in the securities of 
Underlying ETPs registered under the 1940 Act consistent with the 
requirements of Section 12(d)(1) of the 1940 Act, or any rule, 
regulation, or order of the Commission or interpretation thereof. 
The Fund will only make such investments in conformity with the 
requirements of Section 817 of the Internal Revenue Code of 1986. 
The Underlying ETPs in which the Fund may invest will primarily be 
index-based exchange-traded funds that hold substantially all of 
their assets in securities representing a specific index.
---------------------------------------------------------------------------

    The Fund will be a multi-manager, multi-strategy, broadly 
diversified, actively managed exchange-traded fund with a focus on 
``Sustainable Investing.'' Sustainable Investing generally refers to an 
investment methodology that takes into consideration economic, 
environmental, technology, and a variety of social factors when making 
investment decisions. Accordingly, the Fund is designed as a core 
allocation that proactively seeks Sustainable Investment-themed 
investment opportunities that may socially and environmentally benefit 
the earth, with a focus on water, clean energy, community development, 
innovation, and other sustainable themes across asset classes. 
Sustainable Investment themes that the Fund may pursue include, but are 
not limited to, the following: economic themes (corporate governance, 
risk and crisis management, community investment, energy efficiency, 
food, green building); environmental themes (air, water, earth); 
technology themes (mobility, renewable energy, technology, and access); 
and social themes (human health, such as occupational health and 
safety).
    The Fund will seek to achieve its investment objective by 
allocating a portion of the Fund's assets to each of the Fund's Sub-
Advisers who will employ their respective investment strategies to 
generate absolute returns over a full market cycle. Generally, a full 
market cycle consists of a bull market followed by a bear market and a 
return to a bull market, or vice versa. Initially, an equal proportion 
of the Fund's assets will be allocated to each Sub-Adviser to obtain 
the desired exposure to the strategies described below. The allocation 
among Sub-Advisers will vary over time in response to a variety of 
factors including prevailing market conditions. The Adviser has 
designated First Affirmative Financial Network, LLC to allocate and 
monitor the allocation of the Fund's assets to each Sub-Adviser to 
ensure that the Fund's portfolio maintains the proper investment 
exposure to seek to achieve its investment objective. Each Sub-Adviser 
will seek to identify and invest either directly or indirectly through 
other Underlying ETPs in securities of companies that are making a 
positive impact in the world and reflect Sustainable Investment themes, 
including corporate sustainability. The Fund's investments in companies 
that practice corporate sustainability will provide an additional layer 
of diversification because such investments are designed to increase 
long-term shareholder value. Companies focused on corporate 
sustainability also can provide more attractive risk return profiles 
for investors, and can leverage various other Sustainable Investment 
themes.
    The Fund may take both long and short positions in any of these 
investments. The Fund may invest up to

[[Page 30347]]

65% (and intends to always invest at least 15%) of its net assets in 
domestic and foreign fixed income securities. The Fund may invest in 
securities of any capitalization range and may employ one or more 
investment styles (from growth to value) at any time as necessary to 
seek to achieve the Fund's investment objective.
    Each Sub-Adviser will determine whether to buy or sell an 
investment for the Fund's portfolio by applying one or more of the 
following strategies:

Core Strategies

    Fixed Income Strategies. Fixed income strategies consist of 
investment strategies that invest primarily in debt securities of 
domestic and foreign governments, agencies, instrumentalities, 
municipalities and companies of all maturities and qualities (including 
``junk bonds'' and up to 15% of total assets in defaulted debt 
securities), TIPS (Treasury Inflation Protected Securities), and 
Underlying ETPs that provide exposure to fixed income securities or 
strategies. 85% or more of the Fund's investments in fixed income 
strategies will be in investment grade debt securities. Debt securities 
of foreign governments are sometimes referred to as sovereign debt 
obligations and may be issued or guaranteed by foreign governments or 
their agencies. The Fund may invest up to 10% of total assets in 
mortgage-backed securities or other asset-backed securities.\10\ Fixed 
income strategies also may involve hedging through the use of 
investments in other Underlying ETPs to enhance risk-adjusted return.
---------------------------------------------------------------------------

    \10\ This limitation does not apply to securities issued or 
guaranteed by federal agencies and/or U.S. government sponsored 
instrumentalities, such as the Government National Mortgage 
Administration (``GNMA''), the Federal Housing Administration 
(``FHA''), the Federal National Mortgage Association (``FNMA''), and 
the Federal Home Loan Mortgage Corporation (``FHLMC'').
---------------------------------------------------------------------------

    Equity Strategies. Equity strategies will consist of both domestic 
and international/emerging markets strategies. The domestic equity 
strategies will seek to invest in securities of companies that the Sub-
Advisers believe will outperform other equity securities over the long 
term. The international/emerging markets equity strategies will seek to 
invest in securities of undervalued international companies through 
ADRs that provide the Fund with exposure to businesses outside of the 
U.S. and that are attractively priced relative to their economic 
fundamentals. Both U.S. and international investments will be selected 
using fundamental analysis of factors such as earnings, cash flows, and 
valuations based upon them, and will be diversified among the economic 
and industry sectors in the S&P 500[supreg] Index, the Morgan Stanley 
Capital International (``MSCI'') All Country World Index, MSCI Europe, 
Australasia and Far East Index, and MSCI Emerging Markets Index.

Alternative Strategies

    Long/Short and Hedging Strategies. Alternative strategies will 
consist of strategies that combine short sales of equities (including 
shares of Underlying ETPs) or purchase of shares of inverse Underlying 
ETPs. As such, long/short strategies may utilize securities that seek 
to track indexes on markets, sectors, strategies, and/or industries to 
hedge against potential adverse movements in security prices. The Fund 
may implement multiple variations of long/short and hedging strategies. 
The basic long/short equity strategies generally will seek to increase 
net long exposure in a bull market and decrease net long exposure, by 
holding high concentrations in cash or investing 100% short in a bear 
market.

Other Investments

    The Fund may enter into repurchase agreements with financial 
institutions, which may be deemed to be loans. The Fund will follow 
certain procedures designed to minimize the risks inherent in such 
agreements. These procedures will include effecting repurchase 
transactions only with large, well-capitalized, and well-established 
financial institutions whose condition will be continually monitored by 
the Sub-Advisers. In addition, the value of the collateral underlying 
the repurchase agreement will always be at least equal to the 
repurchase price, including any accrued interest earned on the 
repurchase agreement. The Fund may enter into reverse repurchase 
agreements without limit as part of the Fund's investment strategy. 
Reverse repurchase agreements involve sales by the Fund of portfolio 
assets concurrently with an agreement by the Fund to repurchase the 
same assets at a later date at a fixed price.
    The Fund, or Underlying ETPs in which it invests, may invest in 
U.S. government securities and U.S. Treasury zero-coupon bonds. The 
Fund, or Underlying ETPs in which it invests, may invest in shares of 
real estate investment trusts (``REITs'').
    Diversification. The Fund may not (i) with respect to 75% of its 
total assets, purchase securities of any issuer (except securities 
issued or guaranteed by the U.S. Government, its agencies or 
instrumentalities or shares of investment companies) if, as a result, 
more than 5% of its total assets would be invested in the securities of 
such issuer; or (ii) acquire more than 10% of the outstanding voting 
securities of any one issuer.
    Concentration. The Fund may not invest 25% or more of its total 
assets in the securities of one or more issuers conducting their 
principal business activities in the same industry or group of 
industries. This limitation does not apply to investments in securities 
issued or guaranteed by the U.S. Government, its agencies or 
instrumentalities, or shares of investment companies. The Fund will not 
invest 25% or more of its total assets in any investment company that 
so concentrates.
    The Fund's investments will be consistent with the Fund's 
investment objective and will not be used to enhance leverage. The Fund 
will not purchase illiquid securities, and except for Underlying ETPs 
that may hold non-U.S. issues, the Fund will not otherwise invest in 
non-U.S. issues. Further, in accordance with the Exemptive Order, the 
Fund will not invest in options, futures, or swaps.
    To respond to adverse market, economic, political, or other 
conditions, the Fund may invest 100% of its total assets, without 
limitation, in high-quality debt securities and money market 
instruments either directly or through Underlying ETPs. The Fund may be 
invested in these instruments for extended periods, depending on the 
Sub-Advisers' assessment of market conditions. These debt securities 
and money market instruments include shares of other mutual funds, 
commercial paper, certificates of deposit, bankers' acceptances, U.S. 
Government securities, repurchase agreements, and bonds that are BBB or 
higher. While the Fund is in a defensive position, the opportunity to 
achieve its investment objective will be limited.
    Additional information regarding the Trust, Fund, and the Shares, 
including but not limited to investment strategies, risks, creation and 
redemption procedures, fees, portfolio holdings disclosure policies, 
distributions, taxes, Net Asset Value (``NAV''), and availability of 
information can be found in the Registration Statement and Notice, as 
applicable.\11\
---------------------------------------------------------------------------

    \11\ See supra notes 4 and 3, respectively.
---------------------------------------------------------------------------

III. Discussion and Commission's Findings

    The Commission has carefully reviewed the proposed rule change and 
finds that it is consistent with the

[[Page 30348]]

requirements of Section 6 of the Act \12\ and the rules and regulations 
thereunder applicable to a national securities exchange.\13\ In 
particular, the Commission finds that the proposal is consistent with 
Section 6(b)(5) of the Act,\14\ which requires, among other things, 
that the Exchange's rules be designed to prevent fraudulent and 
manipulative acts and practices, to promote just and equitable 
principles of trade, to foster cooperation and coordination with 
persons engaged in facilitating transactions in securities, to remove 
impediments to and perfect the mechanism of a free and open market and 
a national market system, and, in general, to protect investors and the 
public interest. The Commission notes that the Fund and the Shares must 
comply with the requirements of NYSE Arca Equities Rule 8.600 to be 
listed and traded on the Exchange.
---------------------------------------------------------------------------

    \12\ 15 U.S.C. 78f.
    \13\ In approving this proposed rule change, the Commission has 
considered the proposed rule's impact on efficiency, competition, 
and capital formation. See 15 U.S.C. 78c(f).
    \14\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    The Commission finds that the proposal to list and trade the Shares 
on the Exchange is consistent with Section 11A(a)(1)(C)(iii) of the 
Act,\15\ which sets forth Congress' finding that it is in the public 
interest and appropriate for the protection of investors and the 
maintenance of fair and orderly markets to assure the availability to 
brokers, dealers, and investors of information with respect to 
quotations for, and transactions in, securities. Quotation and last-
sale information for the Shares will be available via the Consolidated 
Tape Association (``CTA'') high-speed line. In addition, the Portfolio 
Indicative Value (``PIV''), as defined in NYSE Arca Equities Rule 
8.600(c)(3), will be widely disseminated by one or more major market 
data vendors at least every 15 seconds during the Exchange's Core 
Trading Session.\16\ On each business day, before commencement of 
trading in Shares in the Core Trading Session on the Exchange, the Fund 
will disclose on its Web site the Disclosed Portfolio, as defined in 
NYSE Arca Equities Rule 8.600(c)(2), that will form the basis for the 
Fund's calculation of the NAV at the end of the business day.\17\ The 
NAV per Share for the Fund will be calculated by the Administrator and 
determined as of the close of the regular trading session on the New 
York Stock Exchange (``NYSE'') (ordinarily 4:00 p.m., E.T.) on each day 
that the NYSE is open. In addition, information regarding market price 
and trading volume of the Shares will be continually available on a 
real-time basis throughout the day on brokers' computer screens and 
other electronic services, and the previous day's closing price and 
trading volume information for the Shares will be published daily in 
the financial section of newspapers. The Web site for the Fund will 
include a form of the prospectus for the Fund that may be downloaded, 
additional data relating to NAV, and other applicable quantitative 
information, updated on a daily basis. Moreover, a basket composition 
file, which includes the security names and share quantities required 
to be delivered in exchange for the Shares, together with estimates and 
actual cash components, will be publicly disseminated daily prior to 
the opening of the NYSE via the National Securities Clearing 
Corporation. Price information for the ADRs, debt and equity securities 
held by the Fund, including foreign equity securities, and Underlying 
ETPs will be available through major market data vendors or securities 
exchanges listing and trading such securities.
---------------------------------------------------------------------------

    \15\ 15 U.S.C. 78k-1(a)(1)(C)(iii).
    \16\ According to the Exchange, several major market data 
vendors display and/or make widely available PIVs published on the 
CTA or other data feeds.
    \17\ On a daily basis, the Adviser will disclose for each 
portfolio security or other financial instrument of the Fund the 
following information: ticker symbol (if applicable), name of 
security or financial instrument, number of shares or dollar value 
of financial instruments held in the portfolio, and percentage 
weighting of the security or financial instrument in the portfolio. 
The Web site information will be publicly available at no charge.
---------------------------------------------------------------------------

    The Commission further believes that the proposal to list and trade 
the Shares is reasonably designed to promote fair disclosure of 
information that may be necessary to price the Shares appropriately and 
to prevent trading when a reasonable degree of transparency cannot be 
assured. The Commission notes that the Exchange will obtain a 
representation from the issuer of the Shares that the NAV per Share 
will be calculated daily and that the NAV and the Disclosed Portfolio 
will be made available to all market participants at the same time.\18\ 
In addition, the Exchange will halt trading in the Shares under the 
specific circumstances set forth in NYSE Arca Equities Rule 
8.600(d)(2)(D), and may halt trading in the Shares if trading is not 
occurring in the securities and/or the financial instruments comprising 
the Disclosed Portfolio of the Fund, or if other unusual conditions or 
circumstances detrimental to the maintenance of a fair and orderly 
market are present.\19\ The Exchange will consider the suspension of 
trading in or removal from listing of the Shares if the PIV is no 
longer calculated or available or the Disclosed Portfolio is not made 
available to all market participants at the same time.\20\ Neither the 
Adviser nor the Sub-Advisers are affiliated with a broker-dealer.\21\ 
Further, the Commission notes that the Reporting Authority that 
provides the Disclosed Portfolio must implement and maintain, or be 
subject to, procedures designed to prevent the use and dissemination of 
material non-public information regarding the actual components of the 
portfolio.\22\ The Exchange states that it has a general policy 
prohibiting the distribution of material, non-public information by its 
employees. The Commission also notes that the Exchange may obtain 
information via the Intermarket Surveillance Group (``ISG'') from other 
exchanges that are members of ISG or with which the Exchange has in 
place a comprehensive surveillance sharing agreement. All of the equity 
securities, Underlying ETPs, and sponsored ADRs held by the Fund will 
be listed on securities exchanges, all of which are members of ISG.
---------------------------------------------------------------------------

    \18\ See NYSE Arca Equities Rule 8.600(d)(1)(B).
    \19\ With respect to trading halts, the Exchange may consider 
all relevant factors in exercising its discretion to halt or suspend 
trading in the Shares of the Fund. Trading in Shares of the Fund 
will be halted if the circuit breaker parameters in NYSE Arca 
Equities Rule 7.12 have been reached. Trading also may be halted 
because of market conditions or for reasons that, in the view of the 
Exchange, make trading in the Shares inadvisable.
    \20\ See NYSE Arca Equities Rule 8.600(d)(2)(C)(ii).
    \21\ See supra note 5 and accompanying text. The Commission 
notes that an investment adviser to an open-end fund is required to 
be registered under the Investment Advisers Act of 1940 (``Advisers 
Act''). As a result, the Adviser and Sub-Advisers and their related 
personnel are subject to the provisions of Rule 204A-1 under the 
Advisers Act relating to codes of ethics. This Rule requires 
investment advisers to adopt a code of ethics that reflects the 
fiduciary nature of the relationship to clients as well as 
compliance with other applicable securities laws. Accordingly, 
procedures designed to prevent the communication and misuse of non-
public information by an investment adviser must be consistent with 
Rule 204A-1 under the Advisers Act. In addition, Rule 206(4)-7 under 
the Advisers Act makes it unlawful for an investment adviser to 
provide investment advice to clients unless such investment adviser 
has (i) adopted and implemented written policies and procedures 
reasonably designed to prevent violation, by the investment adviser 
and its supervised persons, of the Advisers Act and the Commission 
rules adopted thereunder; (ii) implemented, at a minimum, an annual 
review regarding the adequacy of the policies and procedures 
established pursuant to subparagraph (i) above and the effectiveness 
of their implementation; and (iii) designated an individual (who is 
a supervised person) responsible for administering the policies and 
procedures adopted under subparagraph (i) above.
    \22\ See NYSE Arca Equities Rule 8.600(d)(2)(B)(ii).
---------------------------------------------------------------------------

    The Exchange further represents that the Shares are deemed to be 
equity securities, thus rendering trading in the

[[Page 30349]]

Shares subject to the Exchange's existing rules governing the trading 
of equity securities. In support of this proposal, the Exchange has 
made representations, including:
    (1) The Shares will conform to the initial and continued listing 
criteria under NYSE Arca Equities Rule 8.600.
    (2) The Exchange has appropriate rules to facilitate transactions 
in the Shares during all trading sessions.
    (3) The Exchange's surveillance procedures applicable to derivative 
products, which include Managed Fund Shares, are adequate to properly 
monitor Exchange trading of the Shares in all trading sessions and to 
deter and detect violations of Exchange rules and applicable federal 
securities laws.
    (4) Prior to the commencement of trading, the Exchange will inform 
its Equity Trading Permit Holders in an Information Bulletin of the 
special characteristics and risks associated with trading the Shares. 
Specifically, the Information Bulletin will discuss the following: (a) 
The procedures for purchases and redemptions of Shares in Creation Unit 
aggregations (and that Shares are not individually redeemable); (b) 
NYSE Arca Equities Rule 9.2(a), which imposes a duty of due diligence 
on its Equity Trading Permit Holders to learn the essential facts 
relating to every customer prior to trading the Shares; (c) the risks 
involved in trading the Shares during the Opening and Late Trading 
Sessions when an updated PIV will not be calculated or publicly 
disseminated; (d) how information regarding the PIV is disseminated; 
(e) the requirement that Equity Trading Permit Holders deliver a 
prospectus to investors purchasing newly issued Shares prior to or 
concurrently with the confirmation of a transaction; and (f) trading 
information.
    (5) For initial and/or continued listing, the Fund will be in 
compliance with Rule 10A-3 under the Act,\23\ as provided by NYSE Arca 
Equities Rule 5.3.
---------------------------------------------------------------------------

    \23\ See 17 CFR 240.10A-3.
---------------------------------------------------------------------------

    (6) The Fund will not: (a) Purchase illiquid securities; (b) in 
accordance with the Exemptive Order, invest in options, futures, or 
swaps; or (c) except for Underlying ETPs that may hold non-U.S. issues, 
otherwise invest in non-U.S. issues.
    (7) The Fund's investments will be consistent with the Fund's 
investment objective and will not be used to enhance leverage.
    (8) A minimum of 100,000 Shares of the Fund will be outstanding at 
the commencement of trading on the Exchange.
    This approval order is based on all of the Exchange's 
representations.
    For the foregoing reasons, the Commission finds that the proposed 
rule change is consistent with Section 6(b)(5) of the Act \24\ and the 
rules and regulations thereunder applicable to a national securities 
exchange.
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    \24\ 15 U.S.C. 78f(b)(5).
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IV. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the 
Act,\25\ that the proposed rule change (SR-NYSEArca-2012-24) be, and it 
hereby is, approved.
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    \25\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\26\
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    \26\ 17 CFR 200.30-3(a)(12).
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Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2012-12355 Filed 5-21-12; 8:45 am]
BILLING CODE 8011-01-P

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